1a.Letter from the Clerk to Gender Recognition
Division, Department for Constitutional Affairs

DRAFT GENDER RECOGNITION BILL

As you are aware, the Joint Committee on Human
Rights is currently conducting pre-legislative scrutiny of the
Draft Gender Recognition Bill. As the entire Draft Bill is designed
to correct incompatibilities between UK law and Convention rights
under the European Convention on Human Rights (ECHR) and the Human
Rights Act 1998, the Committee, in addition to considering the
compatibility of the Draft Bill with human rights (including,
but not restricted to, Convention rights under the Human Rights
Act 1998), is examining a range of policy and drafting issues.

The Committee gave provisional consideration
to the Draft Bill, and the submissions it has received in connection
with it, at its meeting of 20 October. Generally, the Committee
provisionally takes the view that the Draft Bill is likely to
achieve its objective in removing for the future the incompatibilities
established by the European Court of Human Rights in Goodwin
v United Kingdom and I. v United Kingdom
and by the House of Lords in Bellinger v Bellinger.
However, the Committee has instructed me to seek the Department's
response to a number of issues which have arisen from the consultation
exercise and its initial deliberations. In particular, the Committee
is concerned about the following matters:

 In clause 1 of the Draft Bill, the
criteria which are likely to be applied when deciding which countries
and territories should be "approved territories" whose
decisions on recognition of change of gender would be automatically
recognised in this country.

 In clause 2, the proportionality
of requiring an applicant for a gender recognition certificate
to provide evidence of past, present or planned medical or surgical
treatment as a condition for obtaining a certificate, despite
the fact that undergoing such treatment is not a condition of
recognition of a change of gender.

 Although in clause 5 it is made clear
that the legal effects of a change of status operate only prospectively,
whether there might be a case for validating retrospectively at
least some marriages contracted previously between a man and a
male-to-female transsexual person, or vice versa.

 In relation to clauses 3(3)-(9) and
7 of, and Schedule 3 to, the Draft Bill, the need for the applicant's
subsisting marriage to be annulled or dissolved before his or
her change of gender can be recognised with full legal effect.

 In clause 14(4)(d), the great breadth
of the exception from criminal liability for disclosing protected
information where the disclosure is made "in the course of
official duties", and the criteria likely to be applied by
the Secretary of State when deciding whether to create new exceptions
by Order.

 In relation to the impact on anti-discrimination
law, the possible lawfulness of discriminating against a person
on the ground that he or she is a transsexual person.

Clause 1(1)(b) would allow a person to apply
for a gender recognition certificate on the ground that he or
she is "recognised under the law of a country or territory
outside the United Kingdom as having changed gender". This
appears to be a straightforward way of ensuring so far as possible
that people are not treated by law as having different genders
under the law of different countries, and could therefore help
to protect the effective enjoyment of rights under ECHR Articles
8 and 12. If the country or territory in question is an "approved
country or territory" prescribed by order made by the Secretary
of State, and the applicant follows the appropriate procedure,
recognition in the United Kingdom would follow automatically:
clause 1(5). There is no explanation in the Draft Bill, the Commentary
on Clauses, or the background memorandum prepared for the Committee
by the Bill Team, of the criteria which the Secretary of State
will apply when deciding whether to prescribe a country or territory
as an approved country or territory by an order made under clause
1(6).

Question 1: What criteria does the Government
consider appropriate for deciding which countries and territories
should be "approved countries and territories" for the
purpose of clause 1(5)?

The procedures laid down in the Draft Bill for
applying to a Panel for a certificate and to provide prescribed
evidence, and the proposed registration regime, must themselves
be compatible with human rights. Clauses 2(3) and 19(3) provide
that, where an applicant has undergone or is undergoing treatment
to modify sexual characteristics, or such treatment has been prescribed
or planned, one of the medical reports would have to include details
of it. It is not self-evident why this should be a mandatory requirement,
in view of the fact that the criteria in clause 1 for recognising
a change of gender do not include a requirement that the applicant
should have undergone, be undergoing, or be planning to undergo
medical or surgical treatment. A requirement to disclose such
details engages the right to respect for private life under ECHR
Article 8(1). The European Court of Human Rights treats medical
information as particularly private and sensitive, requiring a
high level of protection. It might be said that the information
is needed in order to help the Panel to decide whether it is satisfied
that the applicant intends to continue to live in the acquired
gender until death (clause 1(4)(c)). However, the applicant might
be able to produce other satisfactory evidence of that, in which
case it might be considered both unnecessary and disproportionate
to compel (rather than merely to allow) an applicant to provide
such evidence, threatening a violation of ECHR Article 8.

Question 2: Why is it considered necessary to
include in the Bill a requirement to disclose to the Gender Recognition
Panel details of medical and surgical treatment to modify sexual
characteristics?

3. RETROSPECTIVE
VALIDATIONOF
MARRIAGES

Clause 5(1) provides that a person's gender
becomes for all purposes the acquired gender once a full gender
recognition certificate is issued. However, the law would not
recognise an acquired gender until a full gender recognition certificate
has been issued, and would not retrospectively affect the legal
status of any marriage or other transaction taking place before
the certificate is issued: clause 5(2).

The Committee considers that these provisions
give rise to both general concerns and a specific concern relating
to particular people.

The general concern relates to people who in
the past went through a ceremony of marriage which was invalid
because one party was a transsexual person and not at that time
legally capable of marrying a person of the other gender to the
one they had acquired. They all have potential claims before the
European Court of Human Rights (although not the English courts)
under ECHR Article 13 (right to an effective remedy) until such
time as the legislation comes into force. The Committee is considering
what can be done to provide a remedy for the earlier and continuing
violation of their Convention rights, and in particular whether
it would be desirable for the law to validate those marriages
retrospectively, either on the date when the legislation comes
into force or on the later date when the transsexual person obtains
a gender recognition certificate.

The specific concern relates to those people
who successfully litigated before the European Court of Human
Rights or the English courts and obtained judgments holding that
they had suffered violations of ECHR Articles 8 and 12, or who
have brought similar proceedings which are pending. In many systems
of law (for example, EC law and US constitutional law) a decision
by courts that a person's rights have been infringed may take
effect only prospectively, but the court can provide that the
successful litigants and anyone in a similar position whose case
is pending at the time are to receive the benefit of the change
in the law retrospectively. This is thought to be desirable both
to provide the litigants with a remedy for the violation of their
rights and to ensure that there is some incentive for people to
challenge violations of rights in the public interest. In the
light of these considerations, the Committee is considering whether
it would be appropriate to include in the legislation provision
for retrospectively recognising the change of gender of those
litigants, and retrospectively validating marriages which have
been entered into (for example by Mr and Mrs Bellinger).

Question 3: Would the Government be prepared,
either generally or in the case of successful litigants before
the European Court of Human Rights and courts in the United Kingdom
and other litigants whose cases are pending, to include provisions
retrospectively validating marriages in such circumstances?

The Draft Bill would not invalidate a marriage
if one of the parties subsequently acquires a new gender. However,
a person who is validly married in his or her birth gender would
not be able to obtain a final gender recognition certificate unless
the marriage was annulled or dissolved.

In paragraph 50 of the Notes on Clauses the
Department accepts that other approaches to subsisting marriages
may be justifiable, and that the approach taken has an impact
on the right to respect for private and family life of individual
applicants and their families. But it takes the view that it is
justifiable under Article 8(2) and Article 12 to require transsexual
people to "accept the ending of a male-female marriage as
a condition for registration in the new gender".

However, the Committee has received evidence
of the detriment and suffering which this would cause to members
of many families, and is concerned that the limitation may not
be either proportionate to a pressing social need so as to be
"necessary in a democratic society" or socially desirable.
Where both parties to the marriage want it to continue, but also
want recognition of one party's changed gender, annulling or dissolving
the marriage could have a significant emotional impact on the
members of the family. It would also impose legal detriments,
perhaps particularly in relation to the recoverability of damages
under the Fatal Accidents Acts, the right of a survivor to obtain
the benefit of pensions, the right to certain social security
payments, and exemptions from inheritance tax for transfers of
property.

Question 4: Does the Government consider that
there is a pressing social need to require the annulment or dissolution
of a marriage as a condition for the grant of a final gender recognition
certificate, and that this would be proportionate to a legitimate
aim, bearing in mind the detriment to members of the applicant's
family? What wider policy considerations underlie its decision
to approach this issue in the way that it has? Has the Government
considered ways of alleviating the impact of a forced annulment
or dissolution on the legal rights of the parties, and would the
Government be willing to include such measures in the legislation?

5. DISCLOSUREOF PROTECTED
INFORMATION

There would be a duty, to be backed by criminal
law under clause 14, not to disclose "protected information"
concerning an application for a gender recognition certificate
or the applicants gender before the issue of a full gender recognition
certificate. Information of this type is highly sensitive and
personal. Therefore, as the Strasbourg Court accepted in B.
v France, Eur. Ct. HR, judgment of 25 March 1992, Series
A, No. 232-C, ECHR Article 8 requires stringent protection against
disclosure without the consent of the data subject. The Government
(Commentary on Clauses, paragraph 51) propose to make it a criminal
offence to disclose the information improperly, in order to give
adequate protection to the right to respect for private life under
ECHR Article 8(1). However, it is not to be an offence to disclose
protected information if, among other circumstances, "the
disclosure is in the course of official duties".

The "course of official duties" is
a vague expression, perhaps capable of including unlawful official
action, and certainly capable of including action which is not
required (or even expressly authorised) by statute. It might not
be sufficiently certain to meet the requirement in Article 8(2)
that an interference with the right must be in "accordance
with the law", and it might also be too broad in scope to
ensure that a disclosure would have to be proportionate to a legitimate
aim in order to avoid criminal liability.

Question 5: Would the Government be willing to
define the exception in clause 14 relating to disclosure of information
in the course of official duties more closely in order to give
appropriate protection to the right to respect for private life
of an applicant for a certificate, in accordance with ECHR Article
8?

The Secretary of State would have power under
clause 14(4)(d) and (5) to prescribe by order "circumstances
in which the disclosure of protected information is not to constitute
an offence under this section". Clause 15 would allow such
orders to come into force when made, before being laid before
each House, subject only to subsequent annulment by negative resolution.
The power to create additional exceptions by order gives rise
to concern about both the effect such orders might have on the
proportionality of the scheme as a whole, and the level of parliamentary
control over the orders.

Question 6: Why does the Government consider that
a power to make exceptions to the provisions of clause 14 is necessary?
If it is believed to be necessary, to what extent has the Government
considered whether it could be targeted more closely on the mischief
at which it is aimed? What considerations led to the conclusions
that negative resolution procedure is the appropriate form of
parliamentary control over this power?

6. DISCRIMINATION
AGAINST TRANSSEXUALS

Because a person whose acquired gender is recognised
under the Draft Bill would be regarded for all purposes as being
of that gender, he or she would be treated as a victim of unlawful
sex discrimination for all the purposes of the Sex Discrimination
Act 1975 if he or she suffers discrimination on account of his
or her acquired gender. However, it has been suggested in evidence
to the Committee that when a person has a final gender recognition
certificate it would still be lawful to discriminate against him
or her on the ground that he or she is a transsexual, rather than
because he or she is of one or the other sex or gender.

Question 7: Does the Government agree that discrimination
against persons on the grounds that they were transsexual persons
(of whatever acquired gender) would be lawful under the Draft
Bill? If so, has the Government considered including in the legislation
a further amendment to the Sex Discrimination Act 1975 making
it unlawful to discriminate against a person on the ground that
he or she is a transsexual?

7. GENERALAND
MISCELLANEOUS

The Explanatory Notes to the Draft Bill give
some estimates of the effects of its provisions on public expenditure.
However, these figures are not clearly supported by any assessment
of the number of individuals likely to seek to take advantage
of its provisions.

Question 8: Have any estimates been made of the
number of:

(a) transsexual persons likely to qualify
for the "fast track" procedures provided for in clause
19: and

(b)

the average annual number of transsexual persons
likely to seek recognition under the Bill's provisions?

Clause 11 make provision in relation to peerages,
etc. As the Explanatory Notes state, this is a further exception
to the general proposition in clause 5 that a change of gender
will not have retrospective effect.

Question 9: What consideration of policy led the
Government to conclude that the retrospective exceptions provided
by clause 11 were desirable in the public interest?

The Committee would be grateful for a reply
by 31 October if possible.